ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are cross-motions for summary judgment. ECF No. 12, 14. Attorney Chad Hatfield represents Jay-T H. (Plaintiff); Special Assistant United States Attorney Jeffrey Staples represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 6. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.
Plaintiff filed an application for Supplemental Security Income on November 23, 2016, alleging disability beginning April 13, 2016 due to back problems and a left leg injury. Tr. 75. The application was denied initially and upon reconsideration. Tr. 99-102, 106-08. Administrative Law Judge (ALJ) Jesse Shumway held a hearing on November 27, 2018, Tr. 39-61, and issued an unfavorable decision on December 26, 2018, Tr. 22-31. Plaintiff requested review by the Appeals Council and the Appeals Council denied the request on January 15, 2020. Tr. 1-5. The ALJ's December 2018 decision became the final decision of the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on March 17, 2020. ECF No. 1.
STATEMENT OF FACTS
Plaintiff was born in 1987 and was 28 years old as of alleged onset date. Tr. 75. He has an 11th grade education and a limited work history consisting of agricultural and warehouse laboring. Tr. 177, 198.
STANDARD OF REVIEW
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ's determinations of law are reviewed de novo, with deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or if conflicting evidence supports a finding of either disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988).
SEQUENTIAL EVALUATION PROCESS
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes that a physical or mental impairment prevents the claimant from engaging in past relevant work. 20 C.F.R. § 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds to step five, and the burden shifts to the Commissioner to show (1) the claimant can make an adjustment to other work; and (2) the claimant can perform specific jobs that exist in the national economy. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If a claimant cannot make an adjustment to other work in the national economy, the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v).
"A finding of 'disabled' under the five-step inquiry does not automatically qualify a claimant for disability benefits." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (citing Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001)). When there is medical evidence of drug or alcohol addiction (DAA), the ALJ must determine whether the drug or alcohol addiction is a material factor contributing to the disability. 20 C.F.R. § 416.935(a). In order to determine whether DAA is a material factor contributing to the disability, the ALJ must evaluate which of the current physical and mental limitations would remain if the claimant stopped using drugs or alcohol, then determine whether any or all of the remaining limitations would be disabling. 20 C.F.R. § 416.935(b)(2). If the remaining limitations would not be disabling, DAA is a material contributing factor to the determination of disability. Id. If the remaining limitations would be disabling, the claimant is disabled independent of the DAA and the addiction is not a material contributing factor to disability. Id. Plaintiff has the burden of showing that DAA is not a material contributing factor to disability. See Parra, 481 F.3d at 748.
On December 26, 2018, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act.
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the application date. Tr. 24.
At step two, the ALJ determined Plaintiff had the following severe impairments: lumbar degenerative disc disease, hepatosplenomegaly, anemia, alcohol use disorder, and alcohol induced pancreatitis. Id.
At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. Tr. 25.
The ALJ assessed Plaintiff's Residual Functional Capacity (RFC) and found he could perform light exertional work, except "he cannot climb ladders, ropes, or scaffolds, and can only occasionally perform all other postural activities; and he would miss at least 1-2 days of work per month." Id.
At step four, the ALJ found Plaintiff had no past relevant work. Tr. 26. /// ///
At step five, the ALJ determined that, considering Plaintiff's age, education, work experience, and RFC, there were no jobs that existed in significant numbers in the national economy that Plaintiff was capable of performing. Tr. 26-27.
Because of the presence of substance use, the ALJ further considered Plaintiff's abilities were he to stop drinking alcohol. The ALJ found Plaintiff's remaining impairment would continue to be severe, but would not meet or medically equal a listing. Tr. 27-28.
The ALJ found, if Plaintiff stopped the substance abuse, he would retain the same physical capabilities. Tr. 28.
The ALJ again found Plaintiff had no past relevant work. Tr. 30.
The ALJ finally found that, considering Plaintiff's age, education, work experience, and residual functional capacity if he stopped using alcohol, there would be jobs that existed in significant numbers in the national economy that he would be capable of performing, specifically identifying the representative occupations of housekeeping cleaner, fast food worker, and small parts assembler. Id.
The ALJ thus concluded Plaintiff's substance use disorder was a contributing factor material to the determination of disability, and thus Plaintiff was not under a disability within the meaning of the Social Security Act at any time from the date the application was filed through the date of the decision. Tr. 30.
The question presented is whether substantial evidence supports the ALJ's decision denying benefits and, if so, whether that decision is based on proper legal standards.
Plaintiff contends the ALJ erred by (1) omitting evidence from Plaintiff's primary care provider; (2) failing to adequately evaluate Plaintiff's residual functional capacity in the absence of alcohol use; (3) improperly evaluating the medical opinion evidence; (4) improperly rejecting Plaintiff's subjective complaints; and (5) conducting an improper analysis at step five.
1. Medical opinion evidence
Plaintiff argues the ALJ erred in weighing the opinion evidence, by improperly rejecting the opinion from Plaintiff's treating provider, Dennen Frazier, PA-C, and giving undue weight to the medical expert at the hearing, Dr. Subramaniam Krishnamurthi. ECF No. 12 at 15-17.
In determining the persuasive weight of an opinion, the ALJ should consider the nature of the relationship, the supportability and consistency of the opinion, any specialization of the source, and other factors, such as the understanding of the disability programs and the source's familiarity with the case record. 20 C.F.R. §§ 416.927(c), 416.927(f). The Commissioner may reject the opinion of a non-examining physician by reference to specific evidence in the medical record. Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). An ALJ may discount the opinion of an "other source," such as a physician's assistant, if they provide "reasons germane to each witness for doing so." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
a. Dennen Frazier, PA-C
Plaintiff asserts the ALJ erred by improperly rejecting the opinion from his treating provider, Mr. Frazier, PA-C. ECF No. 12 at 15-17.
In October 2018, Plaintiff's primary care provider, Mr. Frazier, completed a medical source statement. Tr. 420-21. He noted Plaintiff's conditions included chronic left knee pain, closed fracture of the left tibial plateau, and chronic low back pain without sciatica. Tr. 420. He opined Plaintiff needed to lie down during the day once or twice per week for 30 minutes due to pain, and would be likely to miss one day of work per month and be off-task 12-20% of the time if he were attempting to work full-time. Tr. 420-21. Mr. Frazier further stated that full-time work would be likely to cause Plaintiff's condition to deteriorate, as his low back pain would likely continue and worsen without intervention and that he was likely to develop arthritis in his knee at a faster than normal rate due to the fracture. Tr. 421.
The ALJ gave this opinion little weight, finding it contained little meaningful explanation and finding what narrative explanation was offered was not persuasive in light of unremarkable imaging of the spine and knees. Tr. 29. The ALJ further found the opinion to be inconsistent with the longitudinal medical evidence and Plaintiff's own reported activity level. Id.
Plaintiff argues the ALJ failed to offer any analysis of the record and did not cite any inconsistency or explain how Mr. Frazier's opinion was inadequate or inconsistent with Plaintiff's activity level. ECF No. 12 at 16. He argues the record contains imaging and objective findings supporting the disabling limits noted by Mr. Frazier. Id. at 16-17. Defendant argues the ALJ legitimately considered the quality of the explanation in light of the minimal objective findings, and reasonably considered the opinion's consistency with the record as a whole. ECF No. 14 at 6-7.
The Court finds the ALJ did not err. An ALJ may consider the supportability and consistency of an opinion in assessing its persuasiveness. 20 C.F.R. §§ 416.927(c)(3)-(4), 416.927(f). The ALJ reasonably concluded that Mr. Frazier's opinion was lacking in meaningful explanation for the basis of the limits and was inconsistent with the unremarkable imaging and the longitudinal record demonstrating generally normal findings on exam. The ALJ's analysis reaches the germane standard for a non-acceptable source.
b. Dr. Subramaniam Krishnamurthi, MD
Medical expert Subramaniam Krishnamurthi reviewed Plaintiff's treatment records and testified at the hearing. Tr. 44-51. He opined Plaintiff's episodes of pancreatitis were from his alcoholism and would resolve if he stopped drinking. Tr. 45-47. He testified that, absent alcohol use, Plaintiff's only severe impairment would be his lumbar condition, which would limit him to performing light work with some postural limitations. Tr. 48-50.
The ALJ gave Dr. Krishnamurthi's testimony great weight, noting his qualifications, his review of the entire records, reasonable explanations, specialized program knowledge, and that he was available for cross examination. Tr. 26, 29.
Plaintiff argues the ALJ gave undue weight to this testimony, as it was not consistent with the medical evidence showing no detectable alcohol levels on at least ten of Plaintiff's hospitalizations for pancreatitis. ECF No. 12 at 17. Defendant argues the record reflects Plaintiff continued to drink and that he often presented with alcohol-withdrawal symptoms, and that Plaintiff has not demonstrated Dr. Krishnamurthi's testimony was contradicted by all other evidence in the record. ECF No. 14 at 5-6.
The Court finds the ALJ did not err. Dr. Krishnamurthi explained his opinion that Plaintiff's pancreatitis was caused by his alcoholism and would improve if he were to stop drinking. Tr. 45-47. Plaintiff offers no medical basis for his theory that undetectable levels of alcohol at the time of hospitalization indicates otherwise, or his implication that alcohol-induced pancreatitis does not occur without active intoxication. Doctors repeatedly encouraged complete abstinence in order to prevent future complications. Tr. 611, 689. Plaintiff testified at the hearing that he did not have any periods of sobriety longer than two months. Tr. 43-44, 52-53. The ALJ reasonably relied on the medical expert's testimony. See also Social Security Ruling 13-2p (noting some physical conditions are expected to improve with abstinence and allowing an ALJ to rely on the opinion of an acceptable medical source in so finding, even without a period of abstinence).
2. Plaintiff's subjective complaints
Plaintiff alleges the ALJ erred in rejecting his symptom testimony without providing adequate reasons. ECF No. 12 at 17-20.
It is the province of the ALJ to make determinations regarding a claimant's subjective complaints. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ's findings must be supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, the ALJ's reasons for rejecting a claimant's testimony must be "specific, clear and convincing." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).
The ALJ found Plaintiff's medically determinable impairments could reasonably be expected to cause few of the alleged symptoms in the absence of substance use; he found Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms were not entirely consistent with the objective medical evidence and other evidence in the record. Tr. 28. Specifically, the ALJ found Plaintiff's allegations to be undermined by the limited objective findings, adequate pain management, Plaintiff's past reports, his lack of work history, and his generally robust daily activity level. Tr. 28-29.
Plaintiff argues the medical record shows his acute pancreatitis episodes occurred even when he was not drinking, thus undermining the ALJ's conclusions regarding the materiality of alcohol. ECF No. 12 at 18. He further asserts that the remainder of the ALJ's rational was insufficient, as the ALJ failed to identify any specific inconsistencies, made unspecified allegations about Plaintiff's limited work history, and failed to explain how any of the identified daily activities were inconsistent with Plaintiff's allegations. Id. at 19-20. Finally, Plaintiff argues that his intermittent pain from pancreatitis flares and his various musculoskeletal issues would result in absenteeism, excessive breaks, and off-task behavior above the limits that would allow him to remain employable. Id. at 20. Defendant argues the ALJ reasonably considered the type and effectiveness of Plaintiff's treatments, his activities, and his extremely poor work history in finding his allegations unsupported. ECF No. 14 at 3-4.
The Court finds the ALJ offered clear and convincing reasons for discounting Plaintiff's claim of disabling impairments in the absence of alcohol use. As discussed above, the ALJ's finding that Plaintiff's functioning would improve with sobriety was supported by substantial evidence. The ALJ's rationale regarding Plaintiff's remaining conditions is supported by substantial evidence.
The ALJ found Plaintiff's musculoskeletal pain was treated with over-the-counter medications. Tr. 29. An ALJ may reasonably consider the type and effectiveness of treatments. Social Security Ruling 16-3p. An ALJ may also consider a claimant's poor work history in finding allegations of disability to be unsupported. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (An ALJ's finding that the claimant had limited work history and "ha[d] shown little propensity to work in her lifetime" was a specific, clear, and convincing reason for discounting the claimant's testimony.). Plaintiff's earnings record indicates he has never earned at the substantial gainful level. Tr. 177. Though it cannot serve as the sole basis for discounting a claimant's subjective reports, the objective medical evidence is a "relevant factor in determining the severity of the claimant's pain and its disabling effects." Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ noted the mild imaging and largely normal findings on exam. Tr. 29. The ALJ therefore offered sufficient clear and convincing reasons for discounting Plaintiff's claim of disabling limitations in the absence of substance abuse.
3. Unexhibited evidence
On November 14, 2018, Plaintiff's treating provider, Mr. Dennen Frazier, PA-C, completed a letter summarizing Plaintiff's multiple hospitalizations for pancreatitis, and opining he had likely sustained permanent damage to his pancreas and was very likely to have further episodes of acute pancreatitis in the future. ECF No. 13-1. According to Plaintiff's counsel's declaration, this letter was submitted to the electronic file, but was not included in the final record. ECF No. 13 at 2. The letter does not appear in the certified record.
Plaintiff argues the ALJ failed to fulfil his duty to develop the record by not admitting the letter into the record, and thus denied Plaintiff due process. ECF No. 12 at 11-13. He asserts this error was harmful as Mr. Frazier's letter established disabling flares of pancreatitis regardless of whether Plaintiff abstains from alcohol use or not. Id. at 12.
Defendant argues Plaintiff was not denied due process, as he had the opportunity to submit evidence and be heard, and that since the record was submitted, there was no further evidence for the ALJ to develop. ECF No. 14 at 7-8. Defendant characterizes the omission of the letter from the record as a "technical hiccup" or "a glitch in the usual process of evidence management," and asserts any error was harmless at most, as the letter does not undermine the substantial evidence upon which the ALJ relied. Id. at 9-10.
The Court finds that any error on the part of the ALJ in failing to exhibit Mr. Frazier's letter was harmless. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (an error is harmless when "it is clear from the record that the . . . error was inconsequential to the ultimate nondisability determination"). The letter notes Plaintiff's multiple hospitalizations for pancreatitis, which are well-documented in the record. The remainder of the letter does not establish any functional limits or quantify the likelihood of future episodes of pancreatitis. ECF No. 13-1. Despite Plaintiff's allegation, the letter does not establish that Plaintiff would continue to have a disabling rate of pancreatitis flares regardless of his alcohol consumption. Id. It states only that Plaintiff is likely to have further episodes and does not comment on what his status would be if he stopped drinking. Id. Because the letter does not speak to any facts not already addressed in the record, the Court finds its exclusion from the record to be harmless error.
4. Other errors
Plaintiff argues that the ALJ improperly assessed Plaintiff's residual functional capacity in the absence of alcohol, and that the step five findings are insufficient, as the hypothetical posed to the vocational expert failed to account for all of Plaintiff's limitations. ECF No. 12 at 13-15, 20-21. These arguments are based on successfully showing that the ALJ erred in his treatment of the evidence. Id. Because the Court finds that the ALJ did not harmfully err in his evaluation of Plaintiff's symptom statements and the medical opinion evidence, Plaintiff's arguments are without merit.
Having reviewed the record and the ALJ's findings, the Court finds the ALJ's decision is supported by substantial evidence and free of legal error. Therefore, IT IS HEREBY ORDERED:
1. Defendant's Motion for Summary Judgment, ECF No. 14, is GRANTED.
2. Plaintiff's Motion for Summary Judgment, ECF No. 12, is DENIED.
The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant and the file shall be CLOSED.
IT IS SO ORDERED.
DATED February 22, 2021.
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE